dismissed EB-1C Case: Real Estate

(b)(6)
DATE: 
fEB 0 7 2013 
IN RE: Petitioner: 
Beneficiary: 
lJ.S. Department uf llnmcland St•cur·iry 
U.S. Citizenship ;rnd llllllli gr:llion Service' 
Administrative Appc:als Olli cc (_~ \.\0 1 
20 Massachu sclls Ave .. N. W .. !'viS 20Yil 
Washin gton . DC 20529-20 00 
OFFICE: NEBRASKA SERVICE CENTER 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. ~ 115:-l(b)( I )(Cl 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case . Pleas e 
be advised that any further inquiry that you might have concerning your case must be made to that office . 
If you believe the AAO inappropriately applied the law in reaching its decision , or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee or S630.The 
specific requirements for filing such a motion can be found at 8 C.F.R. § I 03.5 . Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)( l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
k~ v/ Ron Rosenberg 
J- Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director , Nebraska Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is an Illinois corporation that seeks to employ the beneficiary as preside nt. 
Accorclingly , the petitioner endeavors to classify the beneficiary as an employment - b~1scd 
immigrant pursuant to sec tion 203(b)(l)(C) of the lmmigration and National ity /\ct (the Act). 8 
U.S.C. § 1153(b)(l )(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish: ( 1) that it has a 
qualifying relationship with the beneficiary's last foreign employer; and (2) that it \VOtild employ 
the beneficiary in a qual'ifying managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the app ea l as a motion 
and forwarded the appeal to the AAO. On appeal, counsel for the petitioner submits a brief and 
additional evidence assert ing that the director's decision was in error. 
I. The Law 
Section 203(b) of the Act states. in pertinent part : 
(1) Priority Workers. -- Visas shall first be made available ... to qLwlificcl 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Manage rs. -- An alien is described in 
this subparagraph if the alien, in the 3 years preceding the time of the a lien 's 
·application for classification and admission into the United States under this 
subparagraph, has been employed for at least l year by a firm or corporation or 
other legal entity or an affiliat e or subsidiary thereof and who seeks to enter the 
United States in order to continue to render services to the same ernployer or to a 
subsidiary or affiliate thereof in a capacity that is managerial or executive . 
The language of the statute is specific in limiting this provision to only those exec uti ves or 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the United States to work for the same entity . or its 
affiliate or subsidiary. c 
A United States employer may file a petition on Forin 1-140 for classification of an al icn under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labo r cenificarion i.-; 
(b)(6)Page 3 
required for this cla ss ification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United 
States in a managerial or executive capacity. Such a statement must clearly describe the cJt:tt ics to 
be performed by the a] ien. 
II. Employment in a Managerial or Executive Capadty 
The first issue to be addressed is whether the petitioner established that the beneficiary would be 
em ployed in the United States in a managerial or executive capacity. 
Section I 01 (a)(44 )(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
·rhe term "managerial capacity" means an assignment within an organization Ill ,,vhich the 
employee primarily --
(i) manages the organization, or a department subdivision, fun ction. o r component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professionaL or manageri al 
employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
(iii) if another employee or other employees arc directly supervised, has the authorit y 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization) or, if no other employee is directly sup er vised, 
functions at a senior level within the organizational hierarchy or with respect to 
the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Section 10l(a)(44)(B) of the Act , 8 U.S.C. § 110l(a)(44)(B), provides: 
The term "exec utiv e capacity" means an assignment within an organization 111 which the 
employee primarily --
(i) direct s the management of the organizatiqn or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component. or function: 
(iii) exercises wide latitude in discretionary decision-making; and 
(b)(6)
Page 4 
(iv) receives only general supervision or direction from high er levc l executi ves, the 
board of directors , or stockholders of the organization. 
The petitioner filed the immigrant visa petition (Form I-140) on August 1, 2011. The petitioner 
is a corporation engaged in comm erc i:tl real estate focused on tJ1e hospitality industry. 'fhc 
record ret1ects that it operates the The petitioner stated on the Form 1-140 
that the corporation, established in 2003, has' a gross annual income of $85.000 .000 and s ix 
employees. The petitioner seeks to employ the beneficiary as president. 
The petitioner submitted a letter from its secretary, dated July 27. 2011. The letter st ated that 
beneficiary had been empl oye d by the petitioner since April 2004 with the follo v.:ing .clut i~;~s and 
responsibilities: 
o Establish a business plan, which outlines current real estate opportunities. 
Liquidation possibilities, future trends, foreclosure predictions, and 
financing options . 
• Analyze the current hospitality real estate market. as well as the likely 
trends in tourism markets and available financing . 
• Determine and forrnulate risk parameters and viable credit option s and 
financing alternatives with banking and credit institutions for the real 
estate purchases in the volatile hospitality sector. 
• Establish. develop, direct and implement an operational strate gy for 
purchasing, which includes areas fo'r investment, tirnefrarnes, banking 
facilities and risk analysis. 
• Purchase unimproved and/or improved commercial real estate properties 
to expand the Company's holdings in the hospitality sector. 
• Budgetary authority and exercise full discretion in maintaining the 
financial position of the company. 
• Anticipate business challenges and changes in the hospitality real estate 
market and develop strategies and solutions to overcome and/or 
compen sate for the challenges and changes. 
• Formulate pricing policies for the sale of the commercial property. 
o Negotiate purchase contracts with vendors and lending institutions. 
• Plan and direct the Company's development, marketing operations and 
management functions. 
o Develop ·and implement business policies and strategies to realize 
continued growth in occupancy revenue as well as in the Compan y's 
property holdings . 
• Ensure that all the Company's investment and development activities are 
in full compliance with applicable local and state ordinances and law s, and 
federal laws . 
(b)(6)Page 5 
'fhe petition er pro vided co pies of three IRS Forms W--2, Wage and Tax Stat ement, issu ed to the 
benefi ciary and tv.·o other employees in 2010 , blll did not provide any eviden ce to co rroh o r~ 1t e its 
employment of six worker s, as stated on the Form I-140. 
On September 14, 2011, the director sent a request for evidence (RFE) to the petitioner. ·rite 
director requested additional evidenc e r elating to the beneficiary's duties in the Unit ed State s. 
Specifically, the director requested: (l) a more detailed duty description with specific day -to-day 
tas ks for each area of responsibility: (2) an estim ate of the percentage of time the be nefici ary 
dedicates to each duty; and (3) an organizational chart for the U.S. petitioner representing the 
staffing at the time the petition was filed . 'fhe chart ~va s to include the comp any's structur e. the 
beneficiary's position within that structure, the names of all departn1ents,and teams. and detailed 
job description s for the benefici ary's immedi ate supervisor and subordinate emplo yee .-;. 
On December 7, 2011, the petitioner responded with additional evidence including a second list 
of ll·broadjob responsibilitics · for the beneficiary, which included such responsibilities as 
"direct and coorditiate activities of the company ," and "direct plan and implem e nt polici es . 
objectives or activities of the company." The petitioner failed to provide a detailed dut y 
description with specific day-to-day tasks as requested by the director. The petitioner also failed 
to provide the requ ested percentage breakdown of time dedicated to each of the ben efi ciary' s 
duties. 
The petitioner 's response included an undated organizational chart which ide ntifies <t total of 14 
employees. The beneficiary's direct subordinates as depicted on the · chart include a sales and 
office mana ger, a "hous ekeeping, supply & breakfast manager" and a chief maint c n~mc e 
rnanager. The chan also iclent ifies two front desk staff, three housekeepin g staff, and worker s 
respon sible for plumbin g, electri cal , heating , carpentry , and other maintenanc e \vork . 
The petitioner also subrnitted copies Of its IRS Form 941, Employ er's Quarterl y Fed eral Ta x 
Return , and its Illinois Employer's Contribution and Wage Report for the third quarter of 20 II. 
The petitioner reported two employees for the months of July and Augu st 20 I I and three 
employees in Sep tember 20 ll. The evidence reflects that the petitioner paid wages to the 
beneficiary and to two individuals identified on the organizational chart as hous ekeepin g staf f. 
These employees earned total quarterly wages of $960 and $1:440, resp ectively. 
The director denied the petition on January 13, 2012 . The director concluded that the petitioner 
did not establish that the beneficiary would be employed in the United States in a primaril y 
rnmwgerial or executive capacity. In denying the petition, the director empha s i7.ecl th~1t the 
record did not establish that the petitioner had sufficient employees to reli eve the ben eficiar y 
from performing the day -to-day operations of the business. 
On appeal, counsel for the petitioner asserts that the director "placed undue emplm-;is on the sizl': 
of the beneficiary's operation in determining bis qualifications as a manag er or exe cuti ve " and 
(b)(6)
Page 6 
failed to "take into consideration current global depressive economic conditions, as well as 
Petitioner's additional investments when making their denial." 
Upon review, the petitioner's assettions are not persuasive. When examining the executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description or 
the job duties. See 8 C.F.R. § 204.5(j)(5). The petitioner's description of the job dut ics rnusl 
clearly describe the duties performed by the beneficiary and indicate whether such duties were 
either in an execur.ivc or managerial capacity. Id.' 
The initial job description submitted by the petitioner was vague and non-specific, offering little 
insight into what tasks the beneficiary would be performing on a day-to-day basis on behalf of 
the petitioner's only investment, the Many of the duties initially described 
suggested that the beneficiary would be primarily responsible for planning and implementing an 
expansion of the company's investment activities and purchasing additional commercial 
properties. However, the petitioner failed to submit any supporting evidence to corroborate the 
petitioner's claim that these are or would be the beneficiary's primary duties, or that the company, 
which has operated one motel since 2004, is regularly engaged in the purchase of commercial 
properties. Notably , none of the duties described mentioned any responsibilities pertaining to the 
petitioner's existing motel, notwithstanding the fact that the beneficiary was one ofonly two to 
. three employees working for the company at the time of filing. As such, much of the initial 
position description appeared to be inconsistent with the nature and scope of the petitioner's 
busir1ess. 
Further, duties such as "develop and implement business policies and strategies," and "plan and 
direct the Company's development" are too vague to provide any meaningful understanding of 
what the beneficiary's position entails. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of 
the beneficiary's daily job duties. The petitioner failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. I I 03, 1 I 08 
(E.D.N.Y. 1989), C{/f'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, despite the director's request for evidence, the petitioner failed to use the opportunity to 
supplement the job description with a more detailed account of the beneficiary's duties. The 
position description the petitioner provided in response to the RFE was different from that 
initially provided, but equally as. vague. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at '1'5 
(S.D.N .Y.). 
(b)(6)Page 7 
.Overall, the petitioner's descriptions of the beneficiary's duties fail to address his actual duties 
within the context of the petitioner's business and therefore are insufficient to establish that he 
would be employed in a qualifying managerial or executive capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the 
petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the 
presence of other employees to relieve the beneficiary from performing operational duties , the 
nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. 
As noted, the petitioner's organizational chart for the U.S. company illustrate s that the 
beneficiary has three managers reporting directly to him while the managers, in turn , sup e ~visc :1 
total of ll employees. A review of the petition , hO\vever, shows that the company claimed onl y 
six employees as of the date of filing, not 15 employees as depicted on the organi zational chart. 
Confu sing the issue further, and as noted above , the petitioner 's IRS Form 941 and stare quartcrl y 
wage report for the quarter during which the petition was filed indicates that only thre e 
personnel, including the beneficiary and two housekeeper s, were paid during the quaner in 
which the petition was filed, and only two employees were paid in August 201 L the 111onth in 
which the petition was filed. The oth er personnel employed during the third quarter of :?0 1.1 
were housek eepers \vho received wages commensurate with part-time employment. 
The record is devoid of any evidence that the petitioner employed the claimed managers, 
mainten ance personnel or front-desk personnel at the time of filing. The petition er has provid ed 
no documentation or explanation for these discrepancies . It is incumbent upon the petitioner to 
resolve any inconsi stencie s in the record by independent objective evidence . Any anempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582. 591-92 
(BIA · 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter ofHo, 19 l&N Dec. 582, 591 (BIA 1988). 
Counsel conectly observes that a company's size alone, without taking into account the 
reasonable needs ofthe organization , may not be the determining factor in denying a visa to a 
multinational manager or executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § l10l(a)(44)(C) . 
However , , it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuou s manner. See. 
e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp . v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true . See Systronics. 15) 
(b)(6)
Page 8 
F: Supp. 2d at 15. Here, as noted above, there are discrepancies in the record as the petitioner 
claimed six employees at the time of filing, submitted an organizational chart that included 15 
employees, but was able to document wages paid to only three employees. -
At the time of filing , the petitioner was engaged in the operation of a motel and claimed an 
annual income of $85,000.00. The company employed ·the beneficiary as president, and 
according to the record, one to two part-time housekeepers at the time of filing. The petitioner 
did not submit sufficient · consistent evidence that it employed any subordinate staff members 
who would perform the actual day-to-day, non-managerial operations of the company. Based on 
the petitioner's representations, it does not appear that the reasonable needs of a motel might 
plausibly be met by the services of the beneficiary as president and two housekeepers. Absent 
evidence that the petitioner had more than two to three total employees at the time of filing. the 
petitioner has not established that two part-time housekeepers could relieve the beneficiary from 
performing the day-to-day operational and administrative tasks associated with the business . 
The AAO has long interpreted the statute to prohibit discrimination against small or medium-size 
businesses. However, the AAO has also consistently required the petitioner to establish that the 
beneficiary's position consists of "primarily" managerial and executive duties and that the 
petitioner has sufficient personnel to relieve the beneficiary from performing operational and 
administrative tasks. Reading section 101 (a)( 44) of the Act in its entirety, the "reasonable 
needs" of the petitioner may justify a beneficiary who allocates 51 percent of his duties to 
managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. The reasonable 
needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See Brazil Quality 
Stones v. Chertojj; 531 F.3d 1063, 1070 n.lO (9th Cir., 2008). 
Here, based on the evidence of record, the beneficiary is the sole full-time employee of a 
company that operates a motel. The petitioner has failed to document that the motel has a 
manager, front desk staff, or any administrative or clerical staff. Thus, while the position 
descriptions submitted by the petitioner indicate that the beneficiary is not involved in clay-to· 
day operations of the motel, the evidence does not support the petitioner's general accounts of the 
beneficiary's duties, thus they have limited probative value in establishing that he will be 
employed in a primarily managerial or executive capacity. 
Based on the overly vague position description provided by the petitioner, the petitioner's failure 
to submit the detailed position description requested in the RFE, the unexplained discrepancies in 
the record pertaining to the petitioner's staffing levels and organizational structure, and the 
absence of personnel to perform the day-to-clay non-managerial functions of the petitioner's 
service oriented business, the petitioner has not satisfied its burden to establish that the 
beneficiary would be employed in a qualifying managerial or · executive capacity. Our 
(b)(6)
Page 9 
conclusion derives from these evidentiary deficiencies and does not rest on the size of the 
. petitioning company. 
Accordingly, · the appeal will be dismissed, as the petitioner had not established that the 
beneficiary would be employed in the United States in a primarily managerial or executive 
capacity, as required by section 203(b)(l)(C) of the Act. 
III. Qualifying Relationship 
The remaining issue addressed by the director is whether the petitione · established thai it has a 
qualifying relationship with the beneficiary's last foreign employer, . located 
in India. 
To establish a "qualifying relationship" under the Act and the regulations , the petitioner must 
show that the beneficiary's foreign employer and the proposed U.S. employer arc the same 
employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidinry" or as 
"affiliateS." See generall .v § 203(b)(l)(C) of the Act , 8 U.S.C. § 1153(b)(1)(C); see olso 8 c.r:·.r<.. 
§ 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary." 
The regulation at 8 C.F.R. § 204.5U)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and control! ing approx imatcly the 
same share or proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate. or subsidiary. 
conducts business in two or more countries. one of which is the United States. 
Subsidim~v means a finn, corporation, or other legal entity of whi ch a parent 
owns, directly or indirectly, more than half of the entity and controls the entity; or 
owns, directly or indirectly, half of the entity and controls the entity; or owns , 
directly or indirectly, 50 percent of a 50-50 joint venture and has equal control 
and veto power over the entity; or owns, directly or indirectly , less than half of the 
entity, but in fact controls the entity. 
(b)(6)Page 10 
The pctttloner asserts that it is a subsidiary of the foreign corporation. Accorditt Q to th· 
petitioner, the U.S. corporation is owned by the foreign company through a deed or trust , held by 
the beneficiary. Further, the petitioner indicates that the foreign company is O\Vned by three 
equal partners, with the beneficiary identified as one of the partners. ln support of these · 
assertions, the petitioner submitted, inter cilia, the following: (1) a "Statement of Ovn1crship." 
dated July 26, 2011, and signed by the secretary of the U.S. corporation; (2) page I of. the U.S. 
corporation's Articles of Incorporation filed February 20, 2003; and (3) U.S. Federal ']\tx 
Ernploycr Identification Number (ElN) letter. 
In the request for evidence, the director requested additional documents to establish the corporate 
relationship between the petitioner and the foreign business entity that employed the bcncficiar) '. 
The type of evidence requested included stock certificates, stock ledgers. evidence of percentage 
owned by members of a limited liability company , evidence of shares of the trust ;tnd stock 
ledgers for it. 
In response to the RFE regarding the qualifying relationship the petitioner provided, im er olio. 
the following relevant documentation: (1) one page of what appears to be a registration of the 
foreign partnership and eight additional pages of on-translated documentation written in a 
language other than English; (2) a letter dated January 7. 2003. and signed by two alleged 
partners ofthe foreign entity asserting that the beneficiary is the third partner and has penntssion 
to buy or merge with a corporation in the United States; and (3) a signed but not notarized or 
certified "Declaration of Trust By Shareholder" owed to the foreign entity, dated January 20, 
2003. identifying the beneficiary as trustee and the other two partners as beneficiaries of the 
trust. 
The director found that ownership c)f the petitioning enLity was not established because the 
second page of the art ides of incorporation document V.7as missing and discrepancies regarding 
shares of the petitioning company had not: been resolved . Accordingly, the director clctcrrn in eel 
that the petitioner failed to establish the required qualifying relationship. 
On appeal counsel provides the missing page of the petitioner's articles of incorporation bui 
asserts that the record already contains sufficient evidence to establish the qualifyit1g 
relationship. Specifically, counsel refers to the self-prepared "Statement of Ownership" and 
schedule K-1 of the petitioner's IRS Form 1120S, U.S. Income Tax Return for an S Cot·1x1ration. 
on which the petitioner indicated that the beneficiary owns I 00% of the company's stock . In his 
decision the director expressed concern that in a previously subrhitted Form 1-140, \vhich w~1 s 
also denied, lhe petitioner subrnitted a share certificate that the petitioner did not include with 
this instant petition. On appeal counsel relics on his assertion that the record adequately 
establishes that "the beneficiary holds the shares in trust for the corporate owner." Ncvcnhclcss , 
the petitioner includes a copy of the share certificate as part of the appeal. Counsel urges the 
record as a whole be considered in making a decision. 
(b)(6)
Page II 
The AAO concurs with the director's determination that the petitioner failed to establish a 
qualifying relationship. The assertions made by petition er regarding the ownership and conlrol 
of the foreign and U.S. corporation raise unresolved questions and inconsistetJcics that prohibit a 
favorable finding. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists betweeri United States and 
foreign entities for purposes of this visa classification . Matter of Church Scientologv 
International, 19 l&N Dec. 593 (Comm'r 1988); see also Matter of Siemens Medico/ Systerns. 
Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982) . In 
the context of this visa petition, ownership refers to the direct or indirect legal right of possession 
of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, L9 I&N Dec . at 595. 
As general evidence of a petitioner's claimed qualifying relationship , stock certificates alone arc 
not sufficient evidence to determine whether a stockholder maintains ownership and control of :1 
corporate entity. The corporate stock certificate ledger , stock certificate registry . corporat e 
bylaws , and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued , the exact number issued to the shareholder , and the 
subsequ~nt percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares , the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systems, Inc., supra . Without full disclosure of all 
relevant documents , USCIS is unable to determine the elements of ownership and control. 
The petitioner's articles of incorporation, filed February 20 , 2003, reflect I ,000 shares of 
common stock to be issued at a par value of $1.00 per share . Page two of the articles of 
incorporation reflect two directors, the beneficiary and secretary of the corporation . 
Despite the director 's explicit request for evidenc e of stock certificates to establi sh O\vncrship 
and control of the U.S. corporation , the petitioner submitted a copy of irs sto ck certificate for the 
first time on appe al. Failure to submit requested evidence that preclude s a material line of 
inquiry shall be grounds for denying the petition. 8 c ·. F.R . § l03 .2(b)(l4) . 
A review of that stock certificate shows that it is stock certificate #1 and it reflects that I 00% of 
the one thousand authorized shares were issued to the foreign corporation on February 20, 2003. 
Nevertheless, petitioner provided tax returns stating that the beneficiary claimed ownership of 
100% of the U.S. entity's stock . . The petitioner failed to provide a stock ledger, corporate 
bylaws, or meeting minutes for the U.S. corporation . 
(b)(6)
P~tge 12 
The AAO acknowledges the petitioner's claim that the beneficiary holds the shares in trust for 
the beneficiaries. _The petitioner provided a document entitled "Declaration of Trust by 
Shareholder," dated February 20, 2003, signed by the beneficiary as "Trustee" and signed by two 
others as "Beneficiary" under the trust. The document is not notarized or certified. The first 
page of this declaration of trust references persons who are listed as the members under the 
document entitled "Memorandum and Articles of Association of [the foreign entity!" but this 
document is not contained in the record. Notably, this declaration of trust document does not 
reference the beneficiary as also being a beneficiary under the trust despite the petitioner's claim 
that the beneficiary is a I /3 partner of the foreign entity. Therefore this document appears to 
establish the beneficiary as trustee of the shares but does not reflect his 1/3 part ownership as 
beneficiary under the trust. Accordingly, ownership and control of these shares is unclear based 
on this evidence. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The petitioner claims that it is a wholly-owned subsidiary of the foreign entity but the ownership 
and control of the U.S. corporation is also unclear. The petitioner filed a U.S. Income Tax 
Return for an S Corporation (Form 1120S) in tax year 2010. According to that form , the election 
to be treated as an S corporation was effective January 1, 2003. The beneficiary did not identify 
the trust or himself as a trustee on the tax documents. To qualify as a subchapter S corporation , a 
corporation's shareholders must be individuals, estates, certain trusts, or certain tax-exempt 
organizations, and the corporation may not ~ave any foreign corporate shareholders . See Internal 
Revenue Code, § 1361 (b)( 1999). A corporation is not eligible to elect S corporation status if a 
foreign corporation owns it in any part. 
Accordingly, since the petitioner would not be eligible to elect S-corporation status with a 
foreign parent corporation, it appears that the U.S. entity is owned by one or more individuals 
residing within the United States rather than by a foreign entity. This conflicting information has 
not been resolved. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In light of the above deficiencies and discrepancies in the evidence, the AAO finds the petitioner 
has failed to establish that it has a qualifying relationship with the foreign entity. For this 
additional reason, the appeal will be dismissed. 
~ 
IV. Conclusion 
The petitioner noted that USCIS approved several L-1 A classification nonimmigrant petitions 
that had been previously filed on behalf of the beneficiary. The director's decision docs not 
indicate whether he reviewed the prior approvals of the nonimmigrant petitions. If the previous 
(b)(6)
Page 13 
nonimmigrant petitions were approved based on the same unsuppmted and contradictory 
assertions that are contained in the current record, th,e approval would constitute material and 
gross eJTOr on the part of the director. The AAO is not required to approve applications or 
petitions where eligibility has not been demon strated, merely because of prior approvals that may 
have been erroneous. See, e.g. Matter of Church Scientology International, 19 l&N Dec. 593 , 
597 (eomm'r 1988). It would be · absurd to suggest that USeiS or any agency must treat 
acknowledged errors as binding precedent. Sussex Eng g. Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
It must be noted that many 1-140 immigrant petitions are denied after USeiS approves prior 
nonimmigrant I-129 L-1 petitions . See, e:g., Q Data Consulting , Inc. v.JNS, 293 F. Supp. 2cl 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D .D.C. · 1999 ); Fed in 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-1 A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-
13 visa petition, which permits an alien to apply for permanent residence in the United StaLes 
and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 
of the Act, 8 U.S. e . §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because 
USers spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions. 
some nonimmigrant L-1A petitions are simply approved in ertor. Q Data Consulting. Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see also 8 e.F.R. § 214.2(1)(14)(i)(requiring no supporting 
documentation to file a petition to extend an L-1 A petition's validity). The record reflects that 
USers has denied a previous Form I-140 filed on behalf of the beneficiary. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court' of appeals and a district court. Even if a service center director had approved 
the nonimmigrant petitions on behalf of the }?eneficiary, the AAO would not be bound to follow 
the contradictory decision of a service center. Louisiana Philharmoni c Orch estra v. INS. 2000 
WL 282785 (E. D. La.), afj'd, 248 F.3d 1139 (5th eir. 2001), cert. denied, 122 S.et. 51 (200 I). 
The petition will be denied for the above stated rea sons, with each considered as an indep endent 
and alt ernative basi s for denial. In visa petition proceedings. the burden of proving eli gibilit y 
for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U .S.C. 
§ 1361. Here . that burden has not been met. Accordingly , the director's decision will be affirmed 
and the petition will be den ied. 
ORDER: · The appeal is dismissed.